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UC overpayment appeal
I am going to an appeal on 21st for O/P of UC. In summary it was official error as the HMRC feed was all wrong when the client had declared all her income.
The appeal papers state
‘it is not in dispute that they correctly declared their circumstances…I apologise for any contradictions and am very sorry for the problems they had…however the fact remains that they have been overpaid’ So they have accepted offical error.
Then the they quote Sweet and Maxwell SS Legislation 16/17 vol 5 page 26 states that any payment of one of the relevant benefits in excess of the claimants appropriate entitlement will be a recoverable overpayment, including those overpayments which purely arise as a result of official error.
The papers however state that ‘Although the law states that the overpayment is recoverable they could request a waiver of the overpayment by writing to debt management.’
My question is would you continue with the appeal or would you ask for an adjournment pending debt management wavering the collection of the overpayment. However if the appeal is successful then they would be repaid what they had already re paid.
We appealed on the basis that they could use their discretion not to recover and quoting Hansard 19/05/11 col 1019 that the ministers intention was not to recover overpayments that were due to official error.
I have never attended a UC tribunal for overpayments only.
Thanks
Pippa
I’m sorry to say that it’s hard to see how the appeal can succeed as it’s true that the DWP can recover overpaid UC whatever the reason for the overpayment, including official error.
It’s definitely a good idea to continue with the request for them not to recover the overpayment through the debt management section but that’s a discretionary decision and doesn’t carry a right of appeal so the tribunal hearing the overpayment appeal won’t have any jurisdiction over it.
Just by the way, it’s a bit alarming that the DWP is still using 16/17 Sweet and Maxwells!
You cannot win an appeal on the basis that discretion ought to have been applied not to recover - that is not something over which the Tribunal has any jurisdiction.
If you have no argument which you can validly make about the overpayment itself, then you really ought to advise your client to withdraw the appeal.
I’m just copying Ros’ homework today…
Have they definitely made and notified a decision revising or superseding the decision awarding the amount which they now say is overpaid? I’ve only had one UC appeal to date and that was an overpayment due to ESA continuing to pay income related ESA after the UC award. The appeal papers were a mess and the Presenting Officer had only got it that morning so had to concede as the judge was straight onto that point.
Thank you.
My gut feeling it seems was right.
I will talk to them about stopping the appeal and going through the discretionary route. The problem was that getting the bundle of papers took about 8 mths so we didn’t see all their side of things until now.
Also the irritating thing is that the HMRC feed is still wrong re her wages and she has to report them every month this is 18 mths after we alerted UC that there was a problem. So there have been further overpayments on the account.
Given that terrible service it might be worth pursuing a complaint and seeking compensation for maladministration - see https://www.gov.uk/government/publications/compensation-for-poor-service-a-guide-for-dwp-staff - in addition to asking for discretion not to recover
Whichever route you take, could you let us know about your progress?
I have found that DWP is taking what looks very much like a blanket approach, refusing to apply discretion and refusing to accept any complaints of official error/maladministration.
DWP shelters entirely behind the idea that the law says any overpayment is recoverable. It seems to consider that this also lets the department off the hook for its own errors.
In effect, ‘We made a mistake but it’s not maladministration. Your complaint is not one we will accept as we have followed our policy and you can’t complain about policy’.
You can’t go through the complaints system, so you can never get to ICE. There is no code pf practice, the near-useless COP1 having been withdrawn 2 years ago and never replaced.
Frustrating, unfair, and as I’ve said before, an over-mighty DWP has no incentive to prevent or correct its own errors.
Whichever route you take, could you let us know about your progress?
I have found that DWP is taking what looks very much like a blanket approach, refusing to apply discretion and refusing to accept any complaints of official error/maladministration.
DWP shelters entirely behind the idea that the law says any overpayment is recoverable. It seems to consider that this also lets the department off the hook for its own errors.
In effect, ‘We made a mistake but it’s not maladministration. Your complaint is not one we will accept as we have followed our policy and you can’t complain about policy’.
You can’t go through the complaints system, so you can never get to ICE. There is no code pf practice, the near-useless COP1 having been withdrawn 2 years ago and never replaced.
Frustrating, unfair, and as I’ve said before, an over-mighty DWP has no incentive to prevent or correct its own errors.
Presumably if DWP actually use the word “policy” they are fettering their discretion and this might be challenged by Judicial Review. Perhaps CPAG’s JR project can help.
Indeed. I have this very much in mind.
There’s a template letter here: https://cpag.org.uk/file/4621/download?token=7poCHM-4
Are you recommending that I threaten judicial review with this template letter and to try to get a resolution that way.
Rather than requesting a discretionary write off under the slower less effective route of a letter etc?
I think the CPAG letter is to challenge a refusal to use the discretion not to recover so you have to make the request not to recover first.
Thanks Ros.
I think I have requested that they don’t recover the overpayment as that is why I potentially ended up at a tribunal.
The SSC1 form requested that it not be recovered.
Would I therefore jump straight to JR or write a further letter to debt management (which I haven’t done) to first request a stop to the recovery?
You need to write to DWP debt management setting out the circumstances - see chapter 8 of the benefit overpayment recovery guide
As set out above the tribunal has no jurisdiction so request to them doesn’t count.
Thank you everyone for your expertise. I know what I am doing now….!
On a slightly different tack - if it was HMRC’s reporting system that was awry could the cl claim compensation from HMRC ?
There is definitely an issue with this case and it continues to be a problem as the HMRC still cannot get the feed right and its been 17 mths. All I got told from UC was that it may be a name spelled wrong and I offered to give the correct spelling( which UC have) to UC and was told that there was nothing they could do as people were ‘looking into it’
It has been so frustrating for the claimants.
I have a case of UC overpayment caused by official error which has made it to ICE. This is unusual owing to DWP’s usual refusal to accept any such complaint, so they can’t usually get to ICE.
DWP has told ICE that the claimant could seek a remedy through appealing - DWP must know full well that this is a non-starter.
It has also told ICE that the overpayment is ‘subject to legislation which does not allow [it] to be written off’.
This is just not true.
Another case indicating a block refusal to exercise discretion, which may wend its way to a pre-action letter…..
Hi Pippa,
I have a very similar situation to your own & believe you may find our experience of interest/ relevance.
Long story with many twists told in brief.Our client is a single parent student teacher who applied for UC. They have a student loan that they will need to pay back when they start working/ earning. They were awarded UC as a complete act of DWP error/ maladministration and were overpaid £2000 UC that they could not reasonably have known about.
This has gone to a Stage 1 and Stage 2 complaint with DWP who have accepted the overpayment was their fault and paid a £100 Consoltary Payment. This was also exacerbated by misadvice and the use of new standard Debt Management letters that are extremely unwarranted in tone and stigmatising.
This complaint has now proceeded to the Independent Case Examiner (ICE).
At no stage from any information provided was the right to request a waiver of the overpayment presented as existing let alone as an option. However we read the requsite Chapter 8 of the Benefit Overpayment Recovery Guide and requested a waiver of recovery of the overpayment on financial grounds. This request was accompanied by an income and expenditure sheet for the client.
An outright refusal of our request for waiver followed stating more information was needed (but not what or delaying the decision to equitably request this). It also stated that hardship “over a longer period of time” was needed but as a young student this clearly would not be possible. As commentated this decision carries no right of appeal.
We agree with a previous commentator who says they believe DWP have a blanket refusal of requests for overpayment waivers. In November we therefore put in a Freedom of Information Act request to ask in much better words how many requests for waivers of UC overpayments had been made from 2016 to date and how many had been granted. Additionally we asked for this same information based on requests made on the grounds of financial hardship.
We have received a reply in the last week explaining that it is too costly for the DWP to supply this information but that under Section 16 of the Act they would be able to supply this for 2018/19. We have requested this information today.
If the reply when received shows that this discretion not to recover is being fettered we may advise our client (as discussed in the comments on your post) to threaten/ seek Judicial Review to get this overpayment waived.
So to summarise we have a complaint in the queue at ICE, a further Freedom of Information Act request in with the DWP, possible Judicial Review and all caused by an overpayment that would formerly have been written off as DWP error!! There does need to be some incentive for DWP to try and get things right and I am sure as UC rolls out this issue I believe will become more & more common.
Hope this helps!
We do have some information about overpayment write-offs because it was given in Parliament.
30 applications for write-off were dealt with in 2018/19 with a 33% success rate.
As your case was actually dealt with under the requested write off process (which is a rarity), I am not sure that you can really sensibly argue that DWP are applying some sort of blanket refusal policy - that is undermined by the success rate which is significant (even if not high).
As with any discretionary power, the DWP needs to reach some rational decision which correctly understands the law and facts, coherently addresses the relevant factors in your client’s case and ignores the irrelevant factors. If it has done that, you are unlikely to succeed on a JR.
The bigger problem seems to be getting the DWP to actually parse write off requests in the correct way so that they are dealt with by the appropriate team. Only 30 were dealt with in 18/19 but it is an absolute fact that more than 30 people tried to ask the DWP for a write off that year and were deflected from doing so by their case manager, the call centre, debt management or the CRT.
This makes matters interesting - https://www.rightsnet.org.uk/welfare-rights/news/item/more-than-19-million-in-universal-credit-official-error-overpayments-recovered-in-2018-2019
‘Debts can only be waived if recovery is causing substantial medical and/or financial hardship to a claimant or their immediate family. ‘
Excluding their own errors from consideration strikes me as fettering discretion and contrary to previous ministerial pronouncements.
Apologies if this appears twice, finger slipped while distracted. Parliamentary Answer yesterday shows a massive 10 waivers in 2019/20 up 31/12/19. They mention rounding, so probably less! If they strictly only responded to the words “on hardship grounds” it will be many!. Answer also shows 159,000 had their overpayment deduction rate reduced, wonder why no info about average £ reduced, hopefully the MP will make a follow up PQ.
Q Asked by Chris Stephens(Glasgow South West)[R][N]Asked on: 20 January 2020
Department for Work and Pensions Universal Credit5464
To ask the Secretary of State for Work and Pensions, what estimate she has made of the number of universal credit claimants who have had a (a) waiver and (b) reduction in deductions to their monthly payments on the grounds of hardship in the latest period for which figures are available.
A Answered by: Will Quince Answered on: 23 January 2020
The Department has an obligation to ensure that public funds are administered responsibly and to abide by the principles set out in Her Majesty’s Treasury’s guidance on Managing Public Money. Waiver applications have to be considered in line with this guidance. Debts can only be waived if recovery is causing substantial medical and/or financial hardship to a claimant or their immediate family.
In 2019/20 (up to 31st December 2019), there were 10 Universal Credit claimants who had their debts waived.
We understand the impact that debt can have on the wellbeing of claimants and we endeavour to ensure that the recovery of any overpayment is managed in a way that takes account of the claimant’s individual circumstances. Where a person says they cannot afford the proposed rate of recovery, a reduction in their rate of repayment may be agreed.
In 2019/20 (up to 31st December 2019), 159,000 Universal Credit claimants had the rate at which they were repaying a benefit overpayment reduced.
*The figures provided in this response have been sourced from internal management information and were not intended for public release. They should therefore not be compared to any other similar figures subsequently released by the Department. The figure relating to the number of debts waived has been rounded to the nearest 10, and the figure relating to reductions in repayment rates has been rounded to the nearest 1,000. It is important to note that debts waived may not all relate to Universal Credit.
The question which these MPs ought to be asking is why the DWP has only considered waiving the overpayment in 30 of the 159,000 cases where the claimant has successful made out a case for reducing the rates on hardship grounds. What do you actually have to do in order to get your case considered for waiver?
The question which these MPs ought to be asking is why the DWP has only considered waiving the overpayment in 30 of the 159,000 cases where the claimant has successful made out a case for reducing the rates on hardship grounds. What do you actually have to do in order to get your case considered for waiver?
Very much so.
I think this should be raised via the Select Committee (when there is one) and the APPG.
I’m quite happy to kick this off with a message to the APPG, which i gather re-started on 20.1.20.
So in a PQ answered on 23/1/20 ” In 2019/20 (up to 31st December 2019), there were 10 Universal Credit claimants who had their debts waived” .
Slightly different PQs with answers on 19 March 2020 but now ” In 2019/20 year to date, there were 3 waivers granted for Universal Credit overpayments, these were all granted on medical grounds”.
Have 7 now had their overpayments re-instated? Must just be me thinking January usually comes before March or am I missing something obvious in the bit about “.. should therefore not be compared to any other, similar data subsequently released by the Department”
Department for Work and PensionsUniversal Credit27036
To ask the Secretary of State for Work and Pensions, how many times her Department has used its discretionary waiver on health grounds in relation to universal credit over-payments as a result of Departmental error.
AAnswered by: Will QuinceAnswered on: 19 March 2020
Waivers can only be granted by the Secretary of State where the recovery of an overpayment is causing substantial medical and/or financial hardship, and clear evidence of this can be provided. The discretion to waive benefit overpayments can only be exercised in line with Her Majesty’s Treasury’s guidance on ‘Managing Public Money’.
Prior to the start of 2019/20, the reason that the overpayment occurred (fraud, claimant error or Departmental error) was not recorded on waiver requests. Therefore, for the years 2017/18 and 2018/19, I have instead provided the total number of successful waivers. It is important to note that these may not all have been for overpayments arising as a result of Departmental errors.
In 2017/18, there were no waivers granted for Universal Credit overpayments. In 2018/19, there were 5 waivers granted for Universal Credit overpayments, of these, 4 were granted on medical grounds. In 2019/20 year to date, there were 3 waivers granted for Universal Credit overpayments, these were all granted on medical grounds.
*The data in this response has been sourced from internal management information and was not intended for public release. It should therefore not be compared to any other, similar data subsequently released by the Department.
Grouped Questions: 27034